Litigation 2 Final Notes

Litigation 2 Final Notes

1. Anatomy of Criminal Trial

2. Witness Questioning

3. Accused as a witness

4. Powers of Court

5. Logical Relevance

6. Legal Relevance

7. Credibility

8. PIS Issues

9. Hearsay

10. First Hand Hearsay Exceptions

11. Remote Hearsay Exceptions

12. Accused/Co-accused’s Character

13. Tendency & Coincidence Evidence

14. Opinion Evidence

15. Identification Evidence

16. Warning & Directions

1. Anatomy of Criminal Trial

Pre-trial hearings (s 139 CPA)
Advanced Determinations(s 192A)
Preliminary questions may be determined before trial commence and before jury has been sworn (s 130 CPA)
Court may make advance ruling before evidence is adduced in proceedings if a question arising in any proceedings regarding (s 192A)
(a) Admissibility or use of evidence proposed to be adduced, or
(b) Operation of a provision of any law in relating to evidence proposed to be adduced, or
(c) Granting leave/permission/direction under s 192
Counsel and court must weigh up level of determinacy available at the time the advance determination is sought and consequence and likelihood of unknown variables arising later in trial (Adam v R)
No power for TJ to make an advance ruling requiring a discretionary determination (TKWJ)
Voir Dire (s 189)
(1) Preliminary question (PQ) where court needs to determine if a fact exists to decide if:
(a) Evidence should be admitted (whether discretion is exercised or not), or
(b) Evidence can be used against a person, or
(c) Witness is competent or compellable
(2) PQs which must be heard in absence of jury include:
(a) Whether particular evidence is:
Evidence of an admission or
Illegally/improperly obtained evidence that may be excluded under s 138(a), or
(b) Whether that evidence should be admitted
(3) In hearing of PQ regarding whether D’s admission should be admitted, the admission’s truth/untruth must be disregarded unless D introduced the matter
(4) Jury must be absent from hearing determining any other PQ unless the court so orders
(5) Court may consider whether the evidence heard in hearing for PQ:
(a) Is likely to prejudice D, and
(b) Will be adduced in the course of the hearing to decide PQ, and
(c) Would be admitted if adduced at another stage of the hearing
(6) Self incrimination privilege exception (s 128(10)) does not apply to hearing to decide PQ
(8) If a jury is absent from hearing to determine a PQ, W cannot give evidence at hearing unless (8):
It is inconsistent with other evidence given by the witness in the proceeding, (a) or
Witness has died (b).
Standard of proof for admissibility - BOP(s 142(1))
(2) Court MUST consider:
(a) consider importance of evidence, and
(b) gravity of matters alleged
Matters of common knowledge do not need proof(s 144)
(1) No proof required about knowledge that is not reasonably open to question and is:
(a) Common knowledge where proceeding is being held or generally, or
(b) Can be verified by referring to an authoritative document can cannot reasonably be questioned.
Knowledge should be so widely held as to give rise to the presumption that all persons are aware of it (Properjohn)
Court and jury is to take knowledge of that kind into account (3).
(4) Party must be given an opportunity to make submissions, and to refer to relevant info that relates to acquiring or consider common knowledge in a way that is necessary to ensure not no unfair prejudice
Judge must tell parties what has been consulted and what conclusions were drawn so that they may correct the judge’s mistakes/misapprehensions (McAuslan)
Opening address of P & D
P’s case then D’s case (s 28)
3 stages of WQ
EIX
XX
RE-X
Manner and form of WQ (s 29)
D’s case (As above)
Closing address of P & D
TJ sums up
Warnings and directions

2. Witness Questioning

Every person is competent or compellable to give evidence about fact EXCEPT (s 12)
Lack of capacity (s 13)
(1) Person is not competent if cannot:
(a) Understand question or
(b) Give an answer to a question,
And that incapacity cannot be overcome - English difficulty interpreters (s 30); mute & deaf witnesses (s 31)
(2) Person not competent to give evidence under (1) may be competent to give evidence about other facts
(3) Person not competent to give sworn evidence (4) may give unsworn evidence if told that:
(5)(a) It is important to tell the truth, and
(5)(b) Should tell the court if they do not know/can’t remember answer
(5)(c) Should feel no pressure to agree unless believes statement to be true
Unsworn evidence’s implications
Test for unworn testimony is substantially difference and less rigorous than competent required for sworn evidence (ALRC)
UEA is silent on whether weight or credibility of evidence is affected, or
Whether a witness can be guilty of perjury
However possible warnings for unreliable evidence (s 163, s 165A)
E.g. 9 y.o’s unsworn testimony re sexual assault – jury need specific directions and comments due to age, inability to give sworn evidence, delay in telling mum, and P’s case depending on truth of evidence (Mills)
(6)Presumption: Person not incompetent simply because of this section
(7) Evidence not inadmissible because witness dies/becomes incompetent halfway
(8)Expert info may be obtained for court to inform itself
Reduced capacity (s 14)
Person not compellable to give evidence if:
(a) Substantial cost or delay to ensure person will have capacity
(b) Adequate evidence on that matter has/will be given from persons or source
Family members (s 18)
(2) Spouse, de facto partner, parent or child of a D may object to being required as a witness for P(a) to give evidence, or (b) give evidence of communication with D
(3) Objection made b4 person gives evidence or as soon as practicable after aware
(4) Court must make such a person aware of this right
(5) Court is to hear & determine objection in the absence of the jury
De facto relationship depends on (Dictionary cl 11 Pt 2)
Duration of relationship,
Common residence
Financial and property arrangements
Mutual commitment to shared life
Care and support of children
Reputation/public aspects of relationship
(6) Objecting person must not be required to give the evidence if the court finds that:
(a) Likelihood that harm would or might be caused to the person, or to the relationship between person and D, and
E.g. wife not testifying to adultery to protect her & husband’s honour (Khan)
(b) The nature and extent of harm outweighs desirability of having evidence given
(7) To determine if ‘harm’ may occur, court must, but is not limited to considering:
(a)Nature and gravity of the offence,
(b)Substance and importance of evidence & weight that is likely to be attached to it,
(c) Whether other evidence concerning the same matters is available to P
(d) The nature of the relationship between the D and person,
(e) Whether person would have to disclose matter received from D in confidence
(8) If an objection has been determined, P may not comment on:
(a) The objection, or
(b) The decision of the court in relation to the objection, or
(c) The failure of the person to give evidence.
Competent:Capable of giving evidence according to law
Capable: assessment of ability to function as W, not assessment of their value/ cred
Competence usually determined in the absence of jury (Demirok)
Compellable: Can be subpoenaed to give evidence (Gilby) – refusal is contempt of court

Refreshing memory (s 32)

No arbitrary time limit (Singh)
Real test is state of W’s memory at the time they made/read notes (Singh)
Although the interval is highly relevant, must also regard nature and extent of evidence given (J v R)
Not limited to hours or days, up to 7 weeks (R v Adam), but not years (Graham v R)
Fresh in memory:
‘Recent’ or ‘immediate’ & quality of memory as ‘not deteriorated or changed by lapse of time’ (Graham v R)
Fresh is different from vivid (ALRC)
Factors in 2(b) are merely guidelines, not mandatory (R v L Cassar)
(3) W using a doc to revive memory may, with leave s 192 read aloud related sections of the doc
(4) On request of party, court is to give directions as it sees fit to ensure doc relates to proceedings produced to that party
POs can depart from refreshing memo rules (s 33)
(1) PO may give EIC for P by reading or being led through a written statement previously made by PO
No need to exhaust their memories or showing a need to refresh memories
(2) Evidence cannot be so given unless:
(a) Statement is made by PO at time of or soon after event
(b) PO signed the statement when it was made
(c) Copy of statement had been given to the person charged or lawyer within reasonable time before the hearing of evidence

Cannot lead in EIC/RE-X unless (s 37(1))
(a) Leave s 192
(b) Introductory (Maves)
Should* lead
(c) No objection
TJ can still prevent leading questions (Varney)
(d) Not in dispute
(e) Expert on hypothetical facts
Leading questions (Dictionary):
Question to W that directly/indirectly suggests a particular answer to the question or
Assumes the existence of a fact in dispute where witness has not yet given evidence as to the existence of which before the question is asked
Examples where leading is acceptable in EIC/RE-X (Maves),
Where elements of evidence have been omitted inadvertently, and
Where all other methods of questioning have failed e.g. asking W to repeat, and
May affect assessment and weight of that evidence.
Examples where leave to lead may be granted
Witness is unlikely to be vulnerablee.g. expert (Gordon)
Circumstances dictate that expediency should override mere form of fairness (Gordon)
For the purpose of identifying person or things & directing attention of W to them (Maves)
Where a W is unable to answer questions put in the regular way, arising from defective memory and requires prompting by a question suggesting the answer (Maves)
Due to complicated nature of matter (Maves)
Judge should allow some leeway in XX (Wakeley)
Judge should allow Counsel some leeway in XX so that counsel can perform their duty of testing evidence given by an opposing W; limits of XX not susceptible to precise definition
Until clear that Counsel is exercising discretion to XX improperly, court is in hands of XX-ing Counsel
Can lead in XX (s 42)
(1) Leading qs can be put to W in XX unless court disallows or directs W to not answer
(2)When allowing question, court may consider the extent to which (non-exhaustive):
(a) Evidence is unfavourable to party calling W
(b) W has an interest consistent with cross-examiner
(c) W is sympathetic to party XX-ing generally or regarding a particular matter
(d) W’s age, mental or intellectual disability that might affect answers
(3) Court is to disallow or direct W to not answer if facts would be better ascertained without asking leading questions
Court must disallow questions or inform W that need not answer in XX if (s 41(1))
(a) Misleading/confusing
(b) Annoying, harassing, intimidating, oppressive, humiliating, offensive repetitive
(c) Belittling or insulting
(d) Stereotypes
(2) In disallowing, court may take into account, but not limited to:
(a) Relevant characteristic or condition of witness e.g. age, education, gender, language, maturity
(b) Disability
(c) Nature of proceeding, offence, relationship between witnesses and other parties
(3) Question is not disallowable merely because it:
(a) Challenges truthfulness, consistency or accuracy of statement made by w
(b) Requires witness to discuss distasteful or private subject
(4) Party may object to a disallowable question
(5) Duty under s 41 is imposed on court whether or not objection is raised
(6) Failure to disallow or inform does not affect admissibility of answer given.
Note: Person cannot print/publish disallowable question (s 195)
Party must give notice in XX of challenges to credibility by later evidence (B v D)
Where XX will challenge veracity of evidence of W1 in a specific way, e.g. by calling W2 to contradict a particular point, XX-er must raise that point with W1 (Brown v Dunn)
This gives W1 a fair chance to elaborate on their story or call corroborating Ws and respond to the attack (Birks)
Consequences of failure to observe rule in B v D depends on circumstances of the case (Birks)
Preventing party from suggesting in closing that W should be disbelieved on points not raised (Birks)
Excluding evidence adduced by breaching party (Payless Superbarn)
Permitting party to recall W and or additional Ws (e.g. s 46)
Permitting adverse comment/XX suggesting that breach is evidence of recent invention (Robinson) (NB: use with caution)
PIS Issues
There is a threshold question of law as to whether the evidence amounts to PIS (R v Wilson)
PIS is where W’s previous representation is inconsistent with evidence given by W (Dictionary)
Previous representation: not made during proceeding (Dictionary)
Express/implied
Oral/written; inferred from conduct
Not intended to be communication to or seen by another
For any reason not communicated
Prior consistent statement is W’s previous rep that is consistent with W’s evidence
Function of adducing PIS
Leave to X on PIS in EIC to discredit own witness (s 38(1)(c))
PIS may be adduced in XX questioning as evidence that substantially affects credibility (s 103(1))
PIS may be lead in XX without leave, so long as s 103(1) is fulfilled (s 106(2)(c))
PIS relevant & admissible relevant to credibility (non hearsay purpose (s 60)) is admissible for its hearsay purpose
Requirements on XX
PIS (s 43)
(1) W may be XX-d on PIS made by W whether or not:
(a) The complete particulars of PIS are given to W
(b) Document containing of record of PIS shown W
(2) If W denies making PIS, counsel is not to adduce statement otherwise than from W unless:
(a) W has been informed of circumstances of making statement so they can ID statement
(b) W’s attention is drawn to inconsistencies between statement and the W’s evidence
(3) Party can re-open case to adduce PIS
Non-W who makes previous rep (s 44)
(1) XX-er cannot cross W on previous rep made by other persons (hearsay), unless (2)(a) evidence of rep has been admitted or (b) will be admitted (hearsay exception)
(3) Where a rep in a document will not be admitted, document must be used to question as follows:
(a) Doc must be produced to W
(b) W must be able to listen to aural document
(c) W must be asked if they stand by the contents of the document
(d) XX cannot identify document or disclose any of its contents
(4) Doc so used may be marked for ID
Production of documents (s 45)
(1) Applies to document containing (a) PIS and (b) previous reps by other persons
(2) If court orders or other party requests, party must produce (a) the document or (b) evidence of contents of document
(3) Court can (a) examine doc, (b) direct its use and (c) admit it
(4) Does not make a inadmissible document under Ch 3 admissible
(5) Production of document does not require XX to tender document

3. Accused as a witness

Right to silence
D not competent as W for P (s 17(2)
AD not compellable unless tried separately (s 17(3)
Comments on failure to give evidence
Comments on D’s failure - Privilege against self-incrimination (s 20(2))

P / J / Co-D
Comment / No / Yes / Yes
Suggest guilt / No / No / Yes

‘Suggests’ – wide (RPS)
‘Exceptional’ (Weissensteiner)

Comments on failure of family (s 20(3))

P / J / Co-D (s 20(4))
Comment / Yes / Yes / Yes
Suggest guilt / No / No / Yes

J can comment on Co-D’s comment (s 20(5))

Warning jury about drawing inferences (Azzopardi)
Is not evidence against accused
Does not constitute an admission against the accused
May not be used to fill in gaps tendered by P
May not be used as make-weight to assess whether P has proved case BRD
Jury to decide case on evidence led; cannot speculate on what D may have said
Convey given purpose, not list all (Wilson)
Accused can only give sworn evidence (s 31 CPA)

Obligation to call material witnesses
P must call all material witness (Kneebone)
TJ directions on P’s failure to call (Apostilides)
Set aside if miscarriage of justice (Apostilides)
P decides which other Ws will be called, TJ not obliged to question reasons (Apostilides)

P / D
Obligation / Yes (Kneebone) / No (Dyers)
J’s comments / Yes (Apostilides) / No (Dyers)

Further Rights
Presumption of Innocence
Fair Trial
Right to Respond & Test Evidence
P’s Burden: BRD
Pmust prove case on BRD (s 141(1))
D to prove case on BOP (s 141(2))
Standard amplified in cases which use circumstantial evidence (Shepherd)
Legal Burden under Criminal Code (s 13.1 CC)
Pros to prove every element of offence relevant to guilty of person charged (1)
Pros to also disprove any matter regarding what the D has discharged as evidential burden of proof imposed on the D (2)
Evidential burden under CC (s 13.3 CC)
D wishing to rely on any exception, exemption, excuse, qualification or justification provided by a law creating an offence bears an evidential burden (3)
D no longer bears evidential burden if the evidence sufficient to discharge burden is adduced by the Pros or court (4)
D’s right to opening address (s 159(2) CPA)
(a) Matters in dispute and not in dispute raised by P’s opening
(b) Matters raised by accused
Openingshould only inform issues raised (R v MM)

4. Powers of Court

Granting Leave (s 192)
When is leave required
Reviving memory in court (s 32)
Leading questions in EIC/RE-X (s 37)
XX unfavourable witness (s 38)
Questioning in RE-X beyond matters raised in XX (s 39)
To recall witnesses (s 46)
XX of D on credibility only (s 104)
To lead cred evidence to rebut denial (s 106)
Adducing evidence relating solely to credibility in re-examination (s 108)
XX of D on character matters (s 112)
Court must consider all of the following(2) – not exhaustive (Stanoevski v R)
(a) Unduly increase or shorten length of the hearing,
(b) Unfairness to a party or witness
(c) Importance of the relevant evidence,
(d) Nature of the proceeding, AND
(e) If court has power to give the direction re evidence
Court is to determine relative weighting to each matter in s 192(2) (Stanoevski v R)
Inherent power to control conduct of proceedings (s 11)
Powers to make orders re WQ (s 26)
Courts have expansive powers to make orders as to (s 26):
The way witnesses are questioned
The production and use of documents and things in connection with the questioning of witnesses; and
The order in which the parties may question a witness; and
The presence and behaviour of any person in connection with the questioning of witnesses
Note: s 26 does not enable court to give direction prior to hearing concerning question at the hearing or controlling the evidence adduced at hearing
Waiver of rules of evidence (s 190)
(1) Courts may, with parties’ consent dispense with:
(a) General rules about:
Giving evidence (ss 26-36)
EIC/RE-X (ss 37-39)
CX (s 40-46)
(b) Documents/other evidence (ss 47-54)
(c) Rules dealing with admissibility, except relevance (Pt 3.2-3.8)
(2) Consent not effective unless:
(a) D was advised by a lawyer
(b) Court satisfied that D understands consequences of giving consent

5. Logical Relevance

What is the evidence?
FII
FII & Credibility
Credibility only
Background evidence
Previous rep (hearsay)
Character of D
Tendency
Coincidence
ID evidence
Is it logically relevant?(s 55)
Only relevant evidence is admissible (s 56)
Evidence with probative value (s 55(1))

Evidence relevant only to red, adm, failure to adduced evidence IS relevant (s 55(2))
Relevant if W had knowledge beyond what jury could see for itself(Smith)
Difference in accused’s appearance at time of offence, distinctive feature such as manner of walking
Dressing accused as robber provides no info; prejudicial and not relevant (Evans)
Evidence of denials by accused not relevant (Graham)
If evidence is of some albeit weak probative value, it is admissible unless some principle of exclusion comes into play(Neal)
Man seen doing push ups but claimed weak left arm: not relevant to if assault happened, but relevant to if it was done in the manner claimed (Spiteri)
In a case of murder/manslaughter for provocation, evidence indicating consciousness of guilt consistent with murder is relevant (Sievers), but would be irrelevant to distinguish consciousness of guilt for murder or manslaughter (in dissent).
Evidence of drug use during arrest is irrelevant to determine that accused was an illicit drug user 4 months prior (Merrit)

Is it provisionally relevant? (Circumstantial) (s 57)
‘Tiles in mosaic’ (Festa)
Relevance from co-existence (Sutton)
Cumulative weight eliminates innocence (Shepherd)
Jury should be satisfied not only that circumstances are consistent with accused committing the offence, but also that facts are inconsistent with any other rational conclusion (Hodge)
Reiterates & amplifies P’s duty to prove BRD
E.g. guilt is not the only rational inference, but it is the only rational inference that can be drawn from the circumstances (Shepherd)
Is it background evidence?
Relationship (Clark; Conway)
Hostile relationship may be relevant to motive and likelihood of act (Clark)
Confined to specific incidents of the relationship (Conway)
Series of events (O’Leary)
Evidence forming part of relevant transaction will itself be relevant (O’Leary)
O’Leary rule is not overridden by EA (Adam).
O’Leary does not say what constitutes a series of transactions
Evidence that discloses a connected series of events form the ingredients of the transaction itself, or make intelligible a course of conduct pursued should be admissible (Conway)
Evidence of a series of events does not demonstrate tendency, disposition, propensity or inclination, and no such direction should be given to the jury (Adam)
Series of events can be broken by lapse of time
Test is not length of time test, e.g. 5 mths is reasonably proximate for violent relationship (Serratore)
Is it a collateral issue?
Negligible significance (Goldsmith)
E.g. Location of cricket pitch)
Attacking credibility

6. Legal Relevance

CL Exception: Res Gestae (Papakosmas)
Allows admission of otherwise admissible
Spontaneous statements by participants or observers
Contemporaneous statements of mental/physical state of speaker
RG evidence may be relevant for a hearsay and credibility purpose
Hearsay statements that are closely contemporaneous with alleged event could be considered a natural reaction and have PV therefore relevant (Papakosmas)
If the contemporaneous statement is a consistent statement it can also support the credibility of the complainant
Questions of fabrication (discretions and warnings) are not a consideration for threshold relevance, but are matters for exclusionary rules such as hearsay
Court can refuse evidence of admission adduced by P (s 90)
Improperly obtained evidence may be excludedwhere PV substantially outweighed by impropriety (s 138)
Discretion to limit use (s 136)
(a) Prejudicial
(b) Misleading/confusing
Examples
Generally may limit for one purpose where evidence has more than one purpose: for example – may be admitted for bg, relationship, state of mind but not for propensity reasoning (O’Leary)
Complaint relevant to credibility and whether sexual assault took place not limited by 136; was admitted as hearsay evidence under s 60 and opinion under s 77 (Papakosmas)
Discretion to excludewhere PV substantially outweighed by [used by P](s 135)
(a) Prejudicial
(b) Misleading
(c) Waste of time
Definition: Substantially outweighed by the danger must be more than a mere possibility of danger, must be a ‘real’ danger (R v Lisoff)
Example: Document that should have been tendered a year earlier was excluded under s 135 because (Dyldam v Jones)
Unfair prejudice to ptf if evidence were accepted without testing documents’ veracity (s 135 (a)); or
Long adjournment may be necessary to allow ptf to examine doc (s 135 (c))
Mandatory exclusion of prejudicial evidence where PV outweighed by danger of unfair prejudice to D [used by D] (s 137)
Probative value:
Extent that evidence can rationally affect the assessment of the probability of the existence of FII (EA Dictionary)
Must be capable of supporting a guilty verdict (R v Shamouil) taken at its highest worth (Carusi), rather than the weight/reliability/credibility of the evidence (Mundine)
Unfair prejudice:
Weak probative value may be outweighed by the danger of unfair prejudice, that jury will make a decision of an improper and emotional basis rather than a logical basis (Evans)
Unfair due to ‘real risk’ that jury may misuse evidence is some unfair way (R v BD)
Not merely because it increases likelihood of a conviction (Papakosmas)
Unfair where evidence is not logically connected with issues in the case (Lockyer)
Examples of unfairly prejudicial evidence
Emotional basis: sympathies, sense of horror, instinct to punish, triggers of human action (ALRC)
Photo of burn injuries to victim, where drs testimonies already described injury = unfair prejudice (Barton)
Demonstration where apt was made to wear armed robber clothing to resemble video footage/photos (Evans)
Evidence NOT admissible when explanation of evidence reveals prejudicial previous criminal offences related to charge (Cook)
Examples of balancing test
Testimony of rape victim’s state of mind was prejudicial, but this prejudice did not out way the high probative value and evidence should not be excluded (Preston)
V identifies apt out of 12 photos; only remembered that offender had goatee, and in photos only one had goatee -– low probative value due to process of ID + danger of unfairness (Blick)

7. Credibility